In the seventeenth century, the Lord Chief Justice of England, Sir Matthew Hale (1909 -1676)wrote that the common law permitted the physical discipline of wives and that husbands had immunity from prosecution if they raped their wives (Historia Placitorum Coronae, Hale, 1736 @ pp 472-474 ). He also said wives, servants, apprentices and children could be subject to ‘moderate correction’ even if such discipline caused death.

In 1860 the Lord Chief Justice of England Sir Alexander Coburn expressed the same law in his judgment in R v Hopley (1860) 2 F & F 20), but did not acknowledge Hale or appear to have referred to any precedent. He simply said it was the law of England. Providing no precedent is an omission we need to investigate further.

In truth, if we go back a little earlier in history, we note that during the Roman occupation of Britain, England – like other occupied nations – incorporated aspects of the occupiers’ pre-Christian Roman law into their legal system. The Romans had a legal principle that a father or master had absolute dominion over his household, including the power of life and death over his wives, children, servants and slaves. History also tells us Hale was an admirer of the Roman Titus Pomponius Atticus (a childhood friend of Cicero) and that Hale, like all other lawyers of his time, studied Roman law, the main subject for a law degree in Oxford or Cambridge. At that time, common law could be learned only at the Inns of Court in London for those who wished to practice law.

King Henry the VIIth abolished the teaching of canon law at Oxbridge but Roman law continues to this day, with common law a late entrant into an Oxford law degree in the eighteenth century. Its introduction came about from 1758 through the initiative of William Blackstone, Solicitor General of England and first Vinerian Professor of law at Oxford. His lectures on common law were published contemporaneously in 1765 as Blackstone’s Commentaries on the Laws of England (Blackstone Reprint of 1st Edn by Oxford Clarendon Press).

Both Hale and Blackstone, although living more than a century apart, studied Roman law in Oxford and common law at the Inns of Court in London. Both would have been aware of the Roman law principle of the power of the paterfamilias, and Hale embraced it whilst Blackstone distanced himself from the Roman law on children and wives, suggesting discipline without violence.

One century after Blackstone, Coburn chose to follow Hale and not Blackstone. I suggest that contemporary law follows this archaic Hale defence and jurisprudence although it has at last been discarded and discredited with regard to violent discipline of all except children.

Hale’s defence and jurisprudence was a sex based gender paradigm in the legal system, perpetuating the dominance of men as husbands, fathers and masters. Most common law jurisdictions around the world have made such violence illegal against all Hale’s stated classes of persons subject to this law, except children. To date, onlyNew Zealand has shaken off its common law heritage by passing a law that such discipline is illegal for children too. In an amendment to its criminal law, discipline without violence remains a defence (s. 59 Crimes (Substituted Section) Amendment Act 2007 (NZ)).

The legal system does not provide children with equal protection of the law from assaults in the course of discipline, as children alone are now subjected to this law and the criminal justice, welfare and social systems manage the consequent risk of harm to children in an ambiguous legal terrain. The law permits the use of ‘reasonable force’ in the discipline of children. What is reasonable in Stratford may not be reasonable in Kensington, for biases – social, class, status, culture – permeate society and the legal system.

In addition, affirmation of this law and policy exposes all family members, including women, to the potential of violence. Women who have been parented in such a toxic environment need support to break dysfunctional intergenerational value systems in which they may have become entangled. Children who learn that such violence is normal behavior grow up with the belief system that corporal punishment and more is a legitimate tool for use in society.

Ultimately such aggression slips into a societal and cultural acceptance of the inevitability of violence. As a consequence we continue to tolerate risks to the health, safety, physical and emotional wellbeing of all women and children. Without legal reform to promote a culture of wellness in the family, this unnecessary stress to women and distress to children will continue. The law is a powerful symbol of the community’s standards of social justice and an authoritative signal of the limits of private and public conduct. If we are to eradicate a cultural acceptance of interpersonal violence that continues to exist after centuries of received legal wisdom, this last legal bastion protective of violence against the most vulnerable members of the family and society must be removed.

As with violence against women, violence against children, wrapped up in obsolete notions of ‘reasonable’ force which tolerates assault as chastisement, should not have the imprimatur of law.

Patmalar Thuraisingham Ambikapathy (c) August 2012

Patmalar Thuraisingham Ambikapathy was first Children’s Commissioner for Tasmania, from 2000 to 2004, where her work continues to have a significant impact. She trained in law in the United Kingdom and practised in the UK and Malaysia. Now a Barrister practising in Victoria, Australia, and formerly working as a Solicitor, she has led the struggle for women and children’s rights, particularly in the area of violence against women and children and their legal representation. She and her work were recognised in 1999 with the award of Children’s Lawyer of the year.